Neal Katyal ’91 discusses Supreme Court at College

In his first extended public remarks since the U.S. Supreme Court ruled in favor of the Trump administration’s ban on immigration from six Muslim-majority countries, North Korea and Venezuela, Neal Katyal ’91, who presented the oral argument opposing the ban before the Court, told an audience of Dartmouth students, faculty and community members last Friday that he was “worried” and “dispirited” by the Court’s decision.

Katyal, a former acting U.S. solicitor general and now a Georgetown law professor and partner at the firm Hogan Lovells delivered a lecture titled “The Supreme Court and National Security Law,” in which he addressed the recent Trump v. Hawaii case and related litigation involving the intersection of national security and individual rights.

Having recently surpassed Thurgood Marshall as the minority attorney who has argued the most cases before the Supreme Court in U.S. history — 37 in total — Katyal spoke frequently from personal experience on the topic of national security law while offering his thoughts on the future of the Supreme Court.

Katyal spoke for several minutes about his involvement in the Trump v. Hawaii case as counsel for the state of Hawaii. His argument to the Court was that Trump’s travel ban was in fact a Muslim ban, and that the President alone did not have the constitutional authority to institute such a ban without the approval of Congress.

“The Court’s majority decision doesn’t grapple with all of the evidence that this was a Muslim ban,” Katyal said.

Referencing the historical decision that upheld Japanese internment during the Second World War, Korematsu v. United States, Katyal called the Trump v. Hawaii case “Korematsu with another name” and claimed that he was “100 percent convinced” that the decision would eventually be overturned.

Katyal also turned a few heads in the room by suggesting that if the Democrats were able to regain control of Congress and the presidency, they could try to increase the number of justices on the Supreme Court to combat the threat of a solidly-conservative Court for years to come.

“I think the Democrats will feel, and not without some justification, that there should be a penalty paid when there’s these types of games being played with a Supreme Court seat — not even giving Merrick Garland a hearing, let alone a vote,” Katyal said.

Government professor Herschel Nachlis, who attended the lecture, said that this was the first time he had heard any pundit seriously suggest increasing the number of justices. He added that the Democratic establishment would be unlikely to seriously pursue that plan because it could risk a significant electoral backlash by voters concerned with separation of powers.

In 1937, President Franklin Roosevelt, frustrated by a Supreme Court that was hostile toward the New Deal, attempted to increase the number of justices to 15 and thereby “pack” the Court. Although Roosevelt was then at the height of his popularity and Democrats enjoyed historic supermajorities in Congress, the plan backfired and led to the formation of a conservative coalition that thwarted most attempts at passing liberal legislation and dominated Congress for the next quarter of a century.

That being said, Nachlis raised the possibility that Katyal’s suggestion could be more of a strategic threat by Democrats to induce the Court away from making extreme decisions. He compared it to the effort by Democrats to convince Chief Justice John Roberts to uphold the constitutionality of the Affordable Care Act in 2012 so the Roberts Court would not be labeled too reactionary.

“The Democratic Party learned that you can threaten the Court into decisions that you like more if you threaten their legitimacy and if you raise their salience in the public,” Nachlis said.

Although he has served in the Justice Department under the Clinton and Obama administrations, Katyal described his views on foreign policy and presidential national security powers as hawkish, arguing that the Constitution gives the President broad authority in those fields.

“If you’re a president in a time of armed conflict, it’s really hard to lose a case in the Supreme Court,” Katyal said.

However, Katyal also said that his background as a first-generation American gives him a different perspective if presidents choose to abuse their national security powers.

“My parents came here from India,” Katyal said. “And they came here not because of the quality of the soil or its sports teams, but because of one simple thing: they could land in this country and be treated fairly — maybe not perfectly, but fairly.”

Katyal described in the speech how that sense of fairness was challenged in the aftermath of 9/11, when the Bush administration proposed setting up special military commissions to try suspected terrorists being held in Guantanamo Bay. Sensing that this was a bridge too far, Katyal brought the case of Salim Hamdan — Osama bin Laden’s personal driver, who was being held in Guantanamo — to the Supreme Court.

In the 2006 case of Hamdan v. Rumsfeld, the Supreme Court ruled 5-3 in favor of Katyal’s position that the special commissions violated the Geneva Convention. Although taking Hamdan’s case was risky considering the public’s attitude toward terrorism after 9/11, Katyal said this case represents the best of the American legal system. ­­

“In many other countries, that guy, that driver, would have been shot for bringing his case,” Katyal said. “More importantly for me, his lawyer would have been shot. But that’s what makes America special. That’s our system of checks and balances.”

Maya Frost-Belansky ’20 said she attended the lecture because she is taking a course called Writing 43: “The Written Judicial Opinion,” in which she has been reading many of the decisions recently handed down by the Court. She said she was impressed by Katyal’s lecture and joined in his disappointment about the outcome of Trump v. Hawaii.

“It was so interesting to hear from his perspective what he feels are the biggest things we need to be talking about regarding national security,” Frost-Belansky said.

Frost-Belansky said that she appreciated how Katyal took a respectful tone toward Justice Neil Gorsuch and President Trump’s recent nominee to the Court, Brett Kavanaugh, even though he disagreed with these individuals ideologically.

“He talked about Trump, Gorsuch and Kavanaugh in the same way, which is: we need to give them the benefit of the doubt, and we need to give them the opportunity to be great at their jobs,” Frost-Belansky said.

Regarding the future of the Court, Katyal said that Kavanaugh’s nomination will almost certainly push the Court in a more conservative direction. However, he defended his decision to publicly endorse Neil Gorsuch’s nomination last year, arguing that Gorsuch did not represent a major ideological change from his predecessor, Antonin Scalia, and that Gorsuch was a better-qualified nominee than he expected President Trump to appoint.

“He was, after all, a judge,” Katyal quipped. “I thought the President was going to nominate Judge Judy.”